105 P. 484 | Mont. | 1909
delivered the opinion of the court.
This action was brought to recover a judgment for the principal sum of $1,385.35 upon a promissory note executed and delivered to plaintiff, an Illinois corporation, by defendant on August 13, 1901, due and payable sixty days thereafter, together with interest from the date of maturity.
The complaint is in the ordinary form. The answer of defendant admits all the allegations contained in it. By way of special defense, as showing a total failure of consideration for which the note was given, it then alleges as follows:
“(1) That on or about the thirty-first day of January, 1901, H. C. Freeman and George B. Dygert were indebted to the plaintiff, the Illinois Engraving Company, and the Dwight Paper Company, and that on or about said date the said parties made and entered into an agreement in writing with this defendant, by which said parties agreed that, in consideration of the payment to them of the sum of $1,000 by this defendant and the execution and delivery to them by this defendant of a
“(2) That this defendant, in compliance with such agreement, paid to the said parties the said sum of $1,000, and made, executed, and delivered his promissory note for the said sum of $1,159.40.
“ (3) That the said plaintiff and said other parties failed and refused to keep and perform either of the terms or conditions of said agreement, by reason of which this defendant has never received any consideration whatever for said promissory note.
“(4) That the promissory note described in the complaint is a renewal of said promissory note for the sum of $1,159.40, and was executed and delivered for the same consideration as said original note, and no other consideration, which said consideration has wholly failed as aforesaid.”
As a counterclaim it alleges the same facts as those set forth in the special defense, and concludes: “That the said plaintiff and said other parties failed and refused to keep and perform either of the terms or conditions of said agreement^ to defendant’s damage in the sum of $1,000.”
In a second count recovery is sought by way of counterclaim for the same amount, as for money had and received by plain
The replication admits that, H. C. Freeman and George B. Dygert being indebted to the plaintiff, “the defendant executed and delivered to the plaintiff the promissory note, and that the note sued on in this action is a renewal of the said note, as alleged in * # * the answer. ” All the other material allegations, both in the special defense and the counterclaims, are denied.
At the trial the defendant testified that the original note had been executed and delivered to plaintiff on January 1, 1901; that at the same time there was executed the agreement referred to in the answer, to which he himself, the Illinois Engraving Company, and the Dwight Bros. Paper Company (Illinois corporations) were the real parties, and that it had been assented to by the plaintiff; that he had then paid to Maley, the agent of the plaintiff and of the other corporations, $1,000 in cash; that the note was thereafter renewed two or three times, the last renewal being the note in controversy; and that the only consideration therefor was a compliance with the terms and provisions of the agreement. Upon being then asked by his counsel whether he had been permitted, after the execution of the agreement, to use the claims referred to therein as his own, or whether the other parties to it had used them, he was not permitted to answer. The objection to the evidence sought to be elicited by this inquiry and one put to him immediately afterward, seeking to bring out the same evidence, was that it was irrelevant and immaterial, and tended to vary the terms of the written agreement. Counsel then offered in evidence a copy of the agreement. Upon objection that it was not relevant to any of the issues in the ease, in that it did not appear to be a writing obligatory in any wise binding upon the plaintiff, it was excluded. The writing is as follows:
“This agreement made and entered into this thirty-first day of January, 1901, by and between the Illinois Engraving Company and the Dwight Bros. Paper Company, corporations duly
“Whereas, the above-named corporations have heretofore commenced actions in the circuit court of Cook county, state of Illinois, against H. C. Freeman and George B. Dygert for the recovery of certain moneys, in which said action 7,000 unbound books, designated as ‘Butte Above and Below Ground,’ together with the electrotypes and engravings and paper stock used in the production of the same, have been attached and are now in the hands of the proper officers of said Cook county, state of Illinois, which said actions are now pending; and
“Whereas, the said G. 0. Freeman has this day paid to the' said corporations and the Henry 0. Shepard Co., the sum of one thousand dollars, and executed and delivered his notes in the sum of fifteen hundred thirty and 71-100 dollars, in full payment of the amount so due to said corporations and the Henry 0. Shepard Co.;
“Now, therefore, this agreement, witnesseth: That the said corporations hereby sell, assign, transfer, and set over unto the said G. O. Freeman, all and singular the said accounts, together with all contracts and agreements together with the drafts accompanying the same turned over and delivered to them by the said H. C. Freeman and Geo. B. Dygert as security for the payment of the indebtedness so sued on as aforesaid, together with all the rights, privileges and benefits resulting or which may result from the prosecution of said actions.
“And the said corporations hereby agree to prosecute said actions aforesaid, together with such other actions as may be necessary to make the same effective for the protection of the said G. 0. Freeman, including the prosecution of an action in the county of Silver Bow, state of Montana, in the event the same may be necessary, the same as if said corporations were protecting their own interests1 and this assignment and agreement had not been made, however at the expense of said G. 0. Freeman.
“And it is further agreed that in the event of a successful prosecution of said actions, the said corporations will either
“Witness our hands this 31st day of January, 1901.
“Dwight Bros. Paper Co.,
“By H. C. Maley,
“Atty. in Fact.
“Illinois Engraving Co.,
“By H. C. Maley,
“Secy, and Treas.
“G. 0. Freeman.
“We hereby consent to the above contract.
“The Henry 0. Shepard Co.,
“By H. C. Maley,
“Atty. in Fact.”
Evidence was then offered to show that the parties signing the agreement, ’other than defendant, had failed to comply with its stipulations on their part. Four letters received by the defendant from the president of the plaintiff and from its attorney, touching the progress of the actions instituted against Freeman and Dygert by the other corporations, were also offered. From three of these, all written during May and June, 1901, it appeared that the amount of the claim of the plaintiff company was originally $1[159.40; that the property mentioned in the agreement was in the hands of the plaintiff as garnishee in the actions against H. C. Freeman and Dygert at the time the note was executed for this amount; that as early as May 29, 1901, judgments had been entered in favor of the plaintiffs in the actions by the other corporations against Freeman and Dygert; and that the sheriff had been authorized to take the property and sell it subject to plaintiff’s right to be first paid out of the proceeds. They also contained assurances that the rights of all the parties would be protected. From the other letter, written in December, 1901, it appeared that the plaintiff had re
No other evidence being offered or introduced, the plaintiff moved for nonsuit upon both of the defendant’s counterclaims. This motion was sustained. Thereupon the plaintiff requested the court to direct a verdict for plaintiff for the amount demanded in its complaint. This motion was also sustained. The .amount of the verdict was $2,055.35, the principal of the note, together with interest from August 13, 1901. In entering the judgment, for some reason not apparent, the sum of $270 was added to this sum as interest, thus making the amount of the judgment to this extent in excess of the verdict. The appeal is from the judgment.
It is apparent that both counterclaims alleged in the answer seek recovery of the same sum, to-wit, the sum of $1,000 paid by •defendant at the time the agreement was made, and that recovery under either would depend upon proof of the same facts. For present purposes, we shall assume that sufficient facts are stated in the special defense to constitute a bar to a recovery by plaintiff, and that there is a sufficient statement In one or both of the counterclaims to support a judgment for «defendant. For convenience in determining the ultimate question submitted for decision, to-wit, whether the action of the
Though it is mentioned in the recitals, the language of the agreement does not, under the most liberal construction, purport to bind it to the performance of any obligation; and it cannot be construed to be a transfer of the claim due to it from Freeman and Dygert, nor to recite an agreement to transfer it, nor to prosecute it to judgment, nor to sell the property, nor to buy it in and deliver it to the defendant. Nor does its language permit the conclusion that it assented to be bound as a surety to see that the other corporations performed their obligations under it. The most that can be said that it undertook to do by attaching its written consent to it, is that it agreed in consideration of the payment to it in full of its claim against Freeman and Dygert, by the defendant, that it would not thereafter assert such an adverse interest in the subject matter of the agreement, nor assume such an attitude toward it, as to obstruct the parties in accomplishing its purpose. It had the property in its possession. Its claim was apparently secured. Whether the other creditors could or could not collect their claims did not concern it. Under these circumstances, it was necessary that they and the defendant should have its consent, in order that they might accomplish the purpose of the arrangement effected by them, and, to obtain it, the defendant assumed the indebtedness-due it from Freeman and Dygert. In attaching its signature, expressing at the same time its purpose in doing so, it assumed no other obligation than that of refraining from obstructing the parties efficiently bound from accomplishing their purpose.
In Lancaster v. Roberts, 144 Ill. 213, 33 N. E. 27, certain persons not mentioned in the body of a contract for the sale of land, which purported to bind the promisor and promisee only, signed it generally as though they were in fact parties. The court in determining the liability of these parties, under the particular circumstances, said: “But we have been referred to no authority which discusses the effect of merely signing a deed or contract where the relation of husband and wife does not exist between the grantor or party named in the instrument, and the party signing the same, but not named therein. It would
The consideration passing to the plaintiff was the payment ■of its debt by defendant. On its part, being in possession of the property and having the exclusive right to subject it to the satisfaction of its debt, it consented that the other creditors might arrange among themselves with defendant for the pursuit of such a course with reference to it that they could .secure the payment of their claims, and at the same time realize •out of it funds sufficient to discharge the note due to plaintiff, with the final result that defendant would secure the property for himself. If the contract does not mean this, it has no meaning. The plaintiff did not agree that, in case it failed of its purpose, it would cancel and surrender defendant’s note, nor do .anything else than to refrain from obstructing the accomplishment of the purpose sought. The property went into the hands •of the sheriff for sale. It does not appear what the result was, but, whatever it was, it is not alleged, nor does it appear from any evidence admitted or offered, that the plaintiff was responsible for it. In the formulation of his defenses in his answer,
We are of the opinion that there is no merit in defendant’s contention. It is apparent from the record, however, that judgment was entered for $270 more than was justified by the verdict. The error, as appears from the statement of facts, occurred through the mistake of someone in ealcul siting interest upon the amount of the verdict found by the jury, whereas such interest'should not have been included. It is directed that the judgment be modified by striking out this interest, and that, as modified, it be affirmed. Each party will pay all costs incurred on his or its own behalf on the appeal.
Modified and affirmed.